A Blogging Experiment by Zvi S. Rosen – All views are my own. Those who do not remember IP history are doomed to relitigate it.

Researching Proposed but Failed Amendments to the US Constitution

In the wake of the recent election, there’s been a lot of talk about amending the Constitution regarding the Electoral College, or making other structural changes.1 When I was writing my article In Search of the Trade-Mark Cases about a decade ago I discovered that there had been eight attempts to amend the Constitution to provide for federal trademark law in the United States without the limitations of the Commerce Clause, such as they are.2 I was surprised to discover this, and I wanted to share some of the research methods for finding Constitutional Amendments that did not succeed through US history.

There have been over 11,000 proposed amendments to the US Constitution.3 However, a comprehensive survey of proposed amendments to the Constitution is surprisingly challenging. The simplest solution nowadays is to use Lexis Congressional, but that’s a subscription service and isn’t easily available to most.4. Michael J. Lynch’s short article The Other Amendments is an excellent start,5 pointing a reader to indices that provide constitutional amendments proposed by Congress:

1963-1968: Proposed Amendments to the Constitution of the United States Introduced in Congress from the 88th Congress, 1st Session through the 90th Congress, 2d Session, January 9, 1963 to January 3, 1969, S. Doc. No. 91-38, 91st Cong., 2d Sess. Washington, D.C.: U.S. Government Printing Office, 1969. (does not seem to be online except through paid databases)

I hope this list is at least somewhat useful. Looking through these lists, it’s clear there’s a failed Constitutional Amendment for everyone.

Proposals to amend the Constitution to modify or abolish the Electoral College are a long tradition, with at least 700 officially proposed amendments on the subject, according to Fairvote. ↩

There were two attempts in the years immediately following the Supreme Court’s 1897 Decision in the Trade-Mark Cases, another two in 1911 and 1913, most likely surrounding protecting trademarks at the Pan-Pacific Exhibition, and four from 1949-1955, which stemmed from the movement for a registration-based federal trademark system. This is discussed at length at the end of my article. ↩

The WaPo Article describes a proposed 1911 Amendment to allow Congress to regulate migratory birds as being “unusual,” but any con law nerd will recognize that this was part and parcel of the controversy that led to Missouri v. Holland less than a decade later. ↩

And even many libraries that subscribe don’t have the Congressional Bills and Resolutions portion of the database ↩

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Author: Zvi S. Rosen

Lawyer and sometimes academic. I've written a fair deal about the evolution of intellectual property law into its present form, this blog is a way to share things that don't fit into a full-length article.
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